Many people believe that once a divorce is finalized and the two parties, with or without a court’s decision, reached a conclusion regarding children, support, and the division of assets and property, that these situations are set in stone and cannot be changed. In fact, this is untrue.
In the State of California, both heterosexual and same sex couples are entitled to divorce or dissolution of partnership. With that long process comes a final decision on important issues and both parties are responsible for holding up their end of the bargain.
But what happens when one party doesn’t comply with a court mandate? Or what if situations change significantly – should child custody or spousal support be changed? In these scenarios, it is possible to seek court action for a post judgment enforcement or post judgment modification.
At San Diego Family Law Attorney, we help clients across San Diego take the necessary court action to enforce or modify a judgment. The information below is intended as a general overview of post judgment enforcement and modification in California. This is not legal advice. Only a professional legal team can provide legal counsel upon understanding your full situation.
Traditional litigation in family law
When pursuing traditional litigation within family law, the Court makes a final decision on how both parties involved will handle future situations – this marks the end of that litigation case and the official end of a marriage. This agreement is legally binding and must be honored.
These agreements often encompass decisions once a marriage has ended and can include topics such as child custody, child support, spousal support, and even division of property, among other issues.
California defines the two parties in this situation as:
- The judgment creditor: the party who wins at judgment – as in, the court determines this party should receive money and/or property.
- The judgment debtor: the party who lost and owes money and/or property.
Of course, the issue that you are seeking enforcement or modification on may not involve money; instead issues like overstepping child visitation boundaries or failing to uphold certain restraints can be involved.
What are post judgment enforcement and post judgment modification?
Post judgment enforcement and post judgment modification both refer to any legal action made after a court judgment that attempts to modify or otherwise enforce the court’s previous final judgment.
Should one party not uphold his or her end of the Court’s final decision, the other party can seek, through legal action, a post judgment enforcement or modification. There are situations where a party may not need to initiate action, as the family court still maintains the right to make changes as the situation changes, which can have an impact on the best interest of any involved children.
Differences between enforcement and modification
Enforcement and modification are not the same thing.
Enforcement refers to a decision a court makes, post judgment, to compel a party to make up for something they haven’t done that they should be doing or to further prevent them from doing something that they shouldn’t be doing.
Modification, on the other hand, is the continued jurisdiction of the court to change or modify any decision previously made based on the shifting best interests of those involved – most often focused on children of divorced or separated parents. This action typically occurs around child support, child custody, and other mandates related to the well-being of the children involved.
Enforcement involves fault on behalf of at least one involved party. Modification is different: a court can choose to make a modification because due to a party’s fault, but it can also be a significant change in circumstance for which neither party is at fault.
Modification is significantly more common than enforcement.
Examples of enforcement and modification
Some examples of enforcement include:
- If one party isn’t paying the court-mandated child support, the other party can take legal action. The court can decide that the lacking party pay money (amount determined by court) to the other party.
- If one party is visiting a child or spouse outside the court-mandated agreements. The court then decides to coerce a party to comply by attaching specific non-monetary terms or conditions, such as revoked rights or even imprisonment, in order to rectify the behavior.
- In both examples, the court is finding the party in contempt of a court decision and the court attempt to force the party in contempt to comply with the order.
A common example of modification includes changing the arrangements around child custody or changing the amount of money for child support, spousal support, or alimony. When a court issues a modification, the court will always focus primarily on the best interest of the children, but the court may also take into consideration major and/or unforeseen changing regarding the paying or receiving of spousal support or alimony, such as a significant change in career or ability to pay.
Best practices for collecting voluntarily without court action
Court decisions in divorce situations often involve one party owing money to the other party. However, this does not mean that the owing party or debtor will pay the judged amount. As the creditor party, you may be split on whether to involve a court in enforcing or modifying your court decision.
First, it is important to understand the responsibilities of both parties:
- Once the court decides what is owed to the winning party/judgment creditor, it is the responsibility of the winning party to collect the judgment.
- If, after 30 days of the court’s judgment the owing party hasn’t released payment or property to the winning party, the winning party has a couple options:
- Seek to collect from the debtor on a voluntary basis
- Take legal action in order to collect. The court does enforce collection automatically or without legal action.
- The debtor is required to act in accordance with the court’s original decision. If the party does not comply in payments, visitation, custody situation, or otherwise, the debtor may be ordered back in court in order for the court to levy enforcement.
The best-case scenario for the creditor to collect judgment from the debtor is for the debtor to pay voluntarily. Should the judgment creditor opt for legal action, common practice suggests that the creditor get in touch with the debtor (the owing party) to ensure the party knows where to mail payment. The creditor can also choose to accept payment less than the entire judgment if the owing party pays sooner than expected or agrees to make regular payments. Should the parties agree to a payment plan, parties must sign a specific California form and file it with the court.
Best practices also suggest that the parties converse by writing. This serves two purposes: there is a paper trail of decisions and there is a significantly lower chance of arguing or stressful conversation between the parties.
In seeking collection, the creditor can state specific consequences should the debtor not pay as agreed upon and/or as soon as possible. These consequences can include:
- Making the debtor aware that the amount owed can increase daily, as the judgment accumulates interest at 10 percent per year, by law.
- Seeking reimbursement for any necessary costs of collection.
- Making the debtor aware that his/her credit can be affected by unpaid judgments, as credit reporting agencies include public records such as the court’s Judgment Roll, which shows which debtors have not paid.
If the debtor continues to avoid payment on judgment, the creditor can request additional actions such as:
- A wage garnishment to recoup monies from the debtor, and perhaps even the spouse or domestic partner of the debtor
- A levy on the bank account or safe deposit box of the debtor
- Liens (the right to keep possession from another person until their debt is cleared)
- Real property, such as house, land, etc.
- Personal property
- The suspension of professional licenses the debtor may hold, such as a real estate or driver’s license
The judgment creditor also is legally mandated to avoid illegal tactics when collecting from the debtor. The law protects the owing party from unfair or abusive ways of collecting debt, regardless of the reasons for withholding payment.
Importantly, any court decision that involves a money judgment (child support, alimony, spousal support, etc.) automatically expires after 10 years from the day of the initial judgment. The creditor can prevent this from happening by filing a formal request for renewal of the judgment, but this must occur before the 10 years expire.
Enforcing child support or spousal support
Should the creditor be unable to collect voluntarily from the debtor, the creditor has every right to take the case back to family court. With sufficient proof, the court can find the debtor party in arears of mandated payment regarding child support, alimony, or spousal support, or otherwise ordered situations.
In these situations, the court typically has a couple ways to enforce payment:
- Traditional debt collection. The court can involve a debt collector, though in order for this method to be effective, the owing party must have enough money or other assets that the collectors can seize in order to satisfy the debt.
- This is a more severe action the court can take, and it is particularly useful if the court determines that the owing party is in contempt – such as by intentionally choosing unemployment or underemployment in an attempt to avoid paying support or simply choosing not to pay despite having the means. Should the owing party be put in jail, the party can seek release by paying the amount that is owed (this is a legal term known as “purging the contempt”).
It is the responsibility of the prosecuting attorney and the family court judge to determine the appropriate action to enforce the owing party to pay the mandated support in full.
Modifications to a child agreement
Of course, in family law the issue is not always financial. You may not have any problems collecting financial money from the debtor. Instead, either party may want to make changes to the initial court decision that established child(ren) custody or child(ren) visitation.
In this scenario, either party is seeking a modification instead of an enforcement. Unlike a post judgment enforcement, a modification is a fairly easy change for the court to make, provided one party indicates reason, with proof, for the change. This proof does not have to show either party at fault, unlike an enforcement. Instead, the proof needs to show that significant change has occurred for one or both parties since the court’s initial final order was passed.
Modifications can occur around many topics, but common situations include:
- Child visitation rights. Perhaps one party wants to change when or how they can visit their child(ren).
- Child custody. This is a more difficult topic for courts to determine. The party who wants to change this must prove that significant changes have occurred to warrant a change in child custody. As always, the courts will determine this based on the best interests of the child(ren).
- Spousal support or alimony. The debtor party may seek to owe less support to the creditor but she or he will have to prove why or how this should be changed. Importantly, it is unlikely that a court will increase the amount a debtor party owes to the creditor party, unless there is a significant change and a strong reason for it. Unlike the initial judgment, when courts used a statewide formula for determining support, this formula does not apply to post judgment modifications.
- Dividing property and assets. Though this is a common topic in divorce, these are unlikely to come up in modification because former couples likely already made decisions regarding how to divide their shared property and assets. For a modification of this type, one party would have to present proof of a significant change.
If you are interested in seeking a post judgment modification or post judgment enforcement, San Diego Family Law Attorney is here for you. Our professional legal team helps clients across the greater San Diego area understand their rights in enforcing and changing court judgments that accompany divorce. To get started, call our offices today at 619-610-7425.